1 HIS HONOUR: I am presently presiding over a defamation trial and I use those words advisedly. The case has been called on as a trial. The jury has been empanelled and has decided the issues left to it, with the result that the plaintiff presently has the benefit of the finding that the two publications sued upon defamed him.
2 In the course of the trial, during which that component was dealt with, there has arisen one major substantive interlocutory application, that is, an application by the defendant to amend its case against the plaintiff, on the issue of justification.
3 In connection with that substantive application, there have been countless subpoenas and notices to produce issued and served as between the parties and as far as I am presently aware, at least three other people, the Commissioner for Police, Mr Quail and a private investigation agent.
4 As part of the substantive application to amend the Defence, being dealt with in the course of this trial, I had to deal with a major issue of privilege, which was the subject of a judgment delivered last Friday (19 March 1999 DLJT: 24 ). In the course of that judgment, I acknowledged that the defendant's position in relation to the issue of privilege was not restricted to the substantive application to amend but to access to material for the purposes of the trial generally.
5 In the course of the progress of the application to amend, the point was reached yesterday, remarkably, that Mr Angus, solicitor for the defendant, who has filed several affidavits, is finally in a position to be cross-examined.
6 At the time of the commencement of Mr Angus's cross-examination, I think it fair to say that there was still an understanding that some matters had to be dealt with before the cross-examination of Mr Angus could be completed.
7 Amongst those matters that had to be resolved, was the question of a claim for privilege raised by the Commissioner for Police consequent upon Notice to Produce served upon him.
8 With respect to the Notice to Produce, and a claim made in relation to the documents sought thereunder, Howard Charles Bell, a solicitor of this Court, and a Senior Legal Officer of the Legal Service of the Police Service of this State, has sworn an affidavit today, to which is exhibited an envelope containing documents which are now generally understood to be documents from the solicitors for the defendant. In respect of those documents, no claim for privilege has been made by the solicitors for the defendant. Mr Bell is presently being cross-examined on that affidavit, in respect to the claim for privilege, which he asserts on behalf of the Commissioner of Police.
9 The point has been reached where I do not think I could, in an extempore judgment, pretend to state without error or with abundant clarity, the whole of the context of everything that has been going on, but mention must be made, and it is critical, of what could be described as a concurrent substantive application by the plaintiff, to have set aside a subpoena served by the defendant on the Commissioner for Police on or about 18 January 1999.
10 Submissions in writing in support of the disposition of the plaintiff's motion favourable to that party, have been served on the defendant and I have been provided with a copy of those submissions.
11 Leaving aside for the moment, any question of standing, I focus on the submissions which state that there are several bases upon which a document ought to be set aside which have been summarised as follows: fishing, oppression, relevance, discovery against third party, abuse of process, no legitimate forensic purpose.
12 Mr Angus, whose cross-examination has been suspended, was asked a series of questions by Mr Barker Q.C. for the plaintiff, recorded at Lines 5 to 15 of the transcript at 528. The import of the evidence there recorded being that Mr Angus does not accede to the proposition that the defendant's subpoena was a fishing expedition " pure and simple", and does not accede to the proposition that it was an abuse of process.
13 As I have earlier indicated, the present matter involving Mr Singleton for the Commissioner of Police, was commenced to be dealt with, on the basis that it would dispose of an impediment to the conclusion of the cross-examination of Mr Angus. However, what has happened is this: that the cross-examination of Mr Evans, on what hitherto had been considered to be not a peripheral but not a major component of this case, within a case, within a trial, gave rise to the introduction of what, on any reasonable basis, can only be concluded to be a new and surprising element.
14 That new and surprising element is s125 of the Evidence Act . It is surprising in this sense, that none of the submissions in support of the plaintiff's application to set aside the subpoena, nor the summary in the document which Mr Nicholas handed up to me, makes any suggestion at all, relating to the notion, not of an abuse of process, but of furtherance of a deliberate abuse of power , by a person concerned with this litigation.
15 That arose, namely the s 125 component, in this context. Mr Bell was asked this question by Mr Reynolds S.C.:
" Q. One of the matters which you have considered as a legal adviser to the New South Wales Police Service, when you have received subpoenas from both the plaintiff and defendant in these proceedings, is the forensic purpose for which the documents are sought. Is that correct?"
16 To which both Mr Singleton and as I recall, Mr Nicholas Q.C., or Mr Wheelhouse objected. S125 raised its head in the sense that it was the foundation relied upon by the plaintiff, through Mr Reynolds, as to the relevance of that question.
17 In addition therefore, to being not only surprising but also to being new, the notion of a deliberate abuse of power has arisen as between the plaintiff and Mr Singleton's client (the Commissioner) and inexorably, as between the plaintiff and the defendant. The suggestion clearly has been made that the question asked should be answered because it is relevant to Mr Bell being a party to the deliberate abuse of power, clearly understood now to be asserted against the defendant.
18 As between the plaintiff and Mr Singleton's client, as a matter of fairness, it can hardly be said that the question is justified on the basis of some evidence arguably available from the testimony of Mr Angus hitherto given, as between the plaintiff and the defendant, being used to lay the groundwork for " reasonable grounds" for a finding in terms of s125(2) as between the plaintiff and the Commissioner of Police.
19 If it is sought to have any claim for privilege made by the Commissioner set aside by reason of the operation of s 125 of the Evidence Act, not only as a matter of general principle, but acutely in the circumstances in which this problem arose, the Commissioner is entitled to particulars of what is alleged to have been his conduct as a principal, accomplice, conspirator or participant in the furtherance of a deliberate abuse of power by the defendant. In other words, what did the Commissioner do? and particulars of the " reasonable grounds " hitherto said to exist for making that assertion; the Commissioner is entitled to have the plaintiff ordered to provide such particulars.
20 The position of the defendant is not quite the same because s 125 of the Evidence Act is applicable at present merely, if at all, to Mr Singleton's position. But if, however, on the plaintiff's motion to set aside the subpoena issued by the defendant, a basis is going to be asserted that a reason for so doing is conduct of a kind akin to furtherance of a deliberate abuse of power as referred to in the Evidence Act , then that is something more than the six matters listed on the document handed up by Mr Nicholas (MFI 9) and the defendant would be entitled to particulars. The particulars in the submissions delivered by the plaintiff to the defendant of which I have a copy are inadequate to sustain an allegation of that kind against the defendant if it is to be relied upon as a basis for setting aside that party's subpoena.
21 The immediate matter for concern is the area of relevance relied upon to sustain the question to which objection is taken. That, as between the plaintiff and the Commissioner of Police on the issue of the Commissioner seeking to assert privilege, can only be described as new and surprising, and before any further cross-examination on that area, the plaintiff is required to particularise its position and, whilst doing so, if it proposes, as seems to be the case, to make a cognate type of allegation against the defendant to have its subpoena set aside, it will be required to deliver the equivalent particulars.
22 I am not disposed at this time to reject the question. That will depend upon the articulation of the basis of relevance in the particulars to be supplied. They are to be supplied by 9.30am tomorrow morning.
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